« ForrigeFortsett »
exhibited this care he may be allowed to, of the note indicated that the trustees, and charge his accounts with whatever expense not the corporation, promised to pay. To the or loss he has been required to meet. John- same effect is Dunham v. Blood, 207 Mass. son v. Leman, 131 Ill. 609, 23 N. E. 435, 7 L. 512, 93 N. E. 804. R. A. 656, 19 Am. St. Rep. 63; 2 Perry on  In the absence of language in a conTrusts (6th Ed.) art. 14, $ 9. The fact that tract by which the parties specifically agree a trustee is indemnified by the estate in this that the third party shall look to the trust manner does not in anywise create a direct estate, alone, for his compensation, the word liability on the part of the trust estate for “trustees" is but descriptio personæ. Trusthe benefit of third persons dealing with the tees of Schools v. Routenberg, 88 Ill. 219; trustee. The remedy of third persons is, Nolin v. Mooty, 29 Ga. App. 97, 113 S. E. 814; in general, a remedy against the trustee, Schuling v. Ervin, 185 Iowa, 1, 169 N. W. only. Johnson v. Leman, supra; Norton v. 686. Phelps, 105 U. S. 393, 26 L. Ed. 1072. An ex  In this case it does not appear by the ception to this rule exists where the estate is bill or the evidence offered that either Parkeither indebted to the trustee, or would be if er, or he and his cotrustees, Hawkins and he should pay the demand, and the trustee Coe, stipulated with Austin that the trust esis insolvent or nonresident. In such case the tate should be bound. Both Parker and Coe trust estate may be reached directly by a pro- testified there was no meeting of the trusceeding in chancery. Wahl v. Schmidt, 307 tees or act ratifying or authorizing the negoIll. 331, 138 N. E. 604. Norton v. Phelps, tiations with Austin and that the trustees supra. If the trustee binds himself for the made no contract with Austin. The contract benefit of the estate, the contract is his per- between Parker and Austin was that Austin sonal contract, though he describes himself was to be president of the new insurance coras trustee. He is liable in an action at law, poration when taken over. There was no and a bill in equity will not lie against the contract by which either Parker, the trustrust estate in such a case, for the right of tees, or the estate agreed to pay Austin any action is one not against the estate, but sum of money for his services. The only against the trustee personally. Wahl v. ground, therefore, upon which Austin could Schmidt, supra; Duvall v. Craig, 2 Wheat. recover anything from anybody for his serv45, 4 L. Ed. 180; Taylor v. Mayo, 110 U. S. ices, is that there was an implied promise 330,ʻ4 S. Ct. 147, 28 L. Ed. 163.
to pay him a reasonable fee. The circuit  The rule is well settled that a guardian and Appellate Courts held the estate liable executor, administrator, trustee, or other on quantum meruit'under an implied liabilperson acting in such relation, in a contractity arising because the estate got the benefit with third persons binds himself personal. of this contract. The evidence does not ly, unless he exacts an agreement from the show an express ratification of this contract person with whom he contracts to look to by the trustees. There was no agreement the funds of the estate exclusively; and sufficient to charge the estate before the this is true regardless of whether the charge work was done. The most that could be said is one for which the trustee may be reim- of the contract was that it was a charge bursed from the trust estate, as that is a against Parker or the trustees, personally or matter wholly between him and the benefici- individually. aries of the trust. Bradner Smith & Co. v.  A trust estate cannot, because it reWilliams, 178 Ill. 420, 53 N. E. 358.
ceives the benefit of a contract made by the In Power V. Briggs, 79 Ill. 493, 22 Am. I trustees, be held liable to third parties upon Rep. 175, the trustees of a church gave a theory of implied liability. It is, as we a note for the payment of a church organ. have seen, only where the estate would be The note recited that they, as “trustees of required to pay the trustee if he paid the the Seventh Presbyterian Church,” promised claim, and the latter is insolvent or nonresito pay the sum specified. It was signed by dent, that the estate can be directly held in four trustees over the designation of their a proceeding in chancery. Wahl v. Schmidt, title. It was there held that, though the supra; Norton v. Phelps, supra. No such statement that they were trustees of the
The evidence does not case appears here.
show the contract to have been one binding Seventh Presbyterian Church appeared in the body of the note and the word “trustees” whether he has a valid claim against Parker
the trust estate to pay Austin anything. was appended to their signatures, there were
or any other of the trustees is not before us. no words in the instrument implying an un
The judgment of the Appellate Court and dertaking on the part of the corporation, and the decree of the circuit court are therefore that it is not to be assumed that it was act
reversed. ing by or through the trustees. The language
(148 N.E.) (317 III. 366)
6. Constitutional law Cam 210-Foreign insurHANOVER FIRE INS, CO. v. CARR, County ance corporation is not citizen, entitled to Collector. (No. 16301.)
equal protection of laws, until it has com
plied with conditions of statute. (Supreme Court of Illinois. April 24, 1925. Though foreign insurance corporation may Rehearing Denied with Modification
be citizen, it is not citizen of state, entitled June 18, 1925.)
to equal protection of laws under Fourteenth
Amendment to United States Constitution, un1. Insurance em 20—Tax on net receipts of for titling it to come and remain in state.
til it has complied with statutory conditions eneign insurance companies need not be equal. ized with personal property tax.
7. Constitutional law E230 (3)-Statute imTaxes imposed under Fire and Marine In
posing annual tax on net receipts of foreign surance Act, § 30, as amended, on net receipts
insurance corporations held not to violate of foreign insurance companies at same rate
equal protection clause of United States Con
stitution. as personal property, held not subject to reduction to equalize it with personal property as
Fire and Marine Insurance Act 1869, $ 30, sessment.
as amended, imposing annual tax on net re
ceipts of foreign insurance corporation for priv2. Corporations am 636–General assembly may ilege of doing business within state, held not vio
prescribe conditions under which foreign cor- lative of equal protection clause of Fourteenth porations may do business within state, and Amendment to United States Constitution. may exclude them entirely.
Duncan, C. J., and Thompson and Dunn, JJ., General Assembly has power to prescribe dissenting. conditions under which foreign corporations, other than those engaged in interstate com Appeal from Superior Court, Cook County; merce or constituting instrumentality of Unit- Charles M. Foell, Judge. ed States government, may do business within state, and may exclude them entirely.
Injunction suit by the Hanover Fire Insur
ance Company against Patrick J. Carr, Coun3. Insurance 20—Statute taxing net receipts ty Collector, to restrain the collection of tax
of foreign insurance corporations held privi- es. From a decree on stipulated facts, making lege and not property tax.
injunction permanent as to certain tax items, Fire and Marine Insurance Act 1869, 8 30, and dismissing bill as to the remainder, comas amended, is tax on business of foreign cor- plainant appeals. Affirmed. poration, based on its net receipts, for privilege
Charles S. Deneen, Oscar B. Ryon, and of doing business within state, and is not prop. Bates, Hicks & Folonie, all of Chicago, erty tax, though method of collection is same as that of personal property; that it is Charles E. Woodward, of Ottawa, and Silprivilege tax does not necessarily require that ber, Isaacs, Silber & Woley, of Chicago (C. it be paid as condition precedent to entering J. Doyle, of Springfield, and E. M. Griggs, of state, and nothing in Laws 1919, p. 628, im- Chicago, of counsel), for appellant. posing annual gross premium tax, is incon Robert E. Crowe, State's Atty., of Chicago sistent with holding that tax on net receipts is (Francis X. Busch, Leon Hornstein, Hiram also privilege tax.
T. Gilbert, William H. Duval, and Bulkley,
More & Tallmadge, all of Chicago, of coun4. Insurance Om 20—Certificate from state in
sel), for appellee. surance superintendent, showing payment of privilege tax, is condition precedent to doing business in state by foreign insurance com
STONE, J. Appellant, a private corporapany.
tion organized under the laws of the state Under Fire and Marine Insurance Act of New York for the purpose of carrying on 1869, § 22, and Smith's St. 1923, c. 73, 8 67, the business of fire, marine, and inland navi. foreign insurance company, as condition pre- gation insurance, filed its bill against appelcedent to doing business in state, must pro- lee, as county treasurer and collector of cure annual certificate from state insurance Cook county, praying for an injunction to superintendent, showing that it has paid tax restrain the collection of a certain tax hererequired by section 30.
inafter referred to. A temporary injunction
was granted as prayed, and on final hearing 5. Insurance en 20—Statute taxing foreign cor
a stipulation of facts was entered into, and porations for right to do business in state the court entered a decree making the inheld not unconstitutional, as not imposing uniform taxes.
junction permanent as to a certain amount
of the tax not in dispute here, and dismissed Fire and Marine Insurance Act 1869, § 30, the bill of complaint as to the remainder for as amended, taxing foreign insurance corporations for right to do business within state, is
want of equity. not violative of Const, art. 9, § 1, requiring such
The tax complained of was that assessed taxes to operate uniformly, because domestic under section 30 of the Fire and Marine Iucorporations of same character are
surance Act of 1869 as amended. Cahill's taxed.
Stat. par. 169, p. 73. It is shown by the
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
stipulation of facts that from May 1, 1922, towith the provisions of their respective charters, April 30, 1923, and for some years prior on the gross receipts.of such agency, to be apthereto, appellant conducted the business of plied exclusively to the support of the fire fire insurance in the town of South Chicago, department of such city." in Cook county, through agencies which it Section 1 of article 9 of the state Conmaintained there. It regularly procured the stitution is as follows: license issued by the rtment of trade and commerce, and has annually paid the
“The General Assembly shall provide such tax of 2 per cent. on its gross premium re- valuation, so that every person and corporation
revenue as may be needful by levying a tax, by ceipts to the state under an act in relation shall pay a tax in proportion to the value of his, to the taxation of nonresident corporations, her or its property—such value to be ascertainetc., approved June 28, 1919. Laws 1919, p. ed by some person or persons, to be elected or 628. In 1923 the agents of appellant in the appointed in such manner as the General Astown of South Chicago made no return of sembly shall direct, and not otherwise; but the net receipts to the board of assessors of General Assembly shall have power to tax pedCook county. That board therefore entered dlers, auctioneers, brokers, hawkers, merchants, as appellant's net receipts the sum of $90,- keepers, grocery keepers, liquor dealers, toll
commission merchants, showmen, jugglers, inn000, added thereto a penalty of $45,000, and bridges, ferries, insurance, telegraph and extook one-half of this total amount,, or $67,- press interests or business, vendors of patents, 500, upon which to assess the tax required. and persons or corporations owning or using The board of review fixed the net receipts franchises and privileges, in such manner as it of appellant at the sum of $90,824, and took shall from time to time direct by general law, the same at its full amount for assessment uniform as to the class upon which it operates." purposes. All personal property in Cook
 Some of the questions involved here county, except the net receipts of foreign fire insurance companies, was scaled and debas- were before this court in People v. Kent, 300 ed in value; one-half the “full value” being 309 11. 53, 139 N. E. 903, and were there de
Ill. 324, 133 N. E. 276, and People v. Barrett, taken for assessment purposes. It is contended by appellant that section
cided against appellant's contentions here. 30 of the Fire, Marine, and Inland Naviga- said in the Kent Case pertaining to the ques
Appellant argues, however, that what was tion Insurance Act is unconstitutional and void, for the reason that it violates section 1 tions involved here was not necessary to the of article 9 of the Constitution of Illinois, by should not be adhered to, and that the Bar
decision of the case, and was wrong, and imposing a tax which is not imposed on rett Case, having been based on the Kent domestic fire insurance companies or casualty companies; that such tax is not a privi. Case, is wrong, and should be overruled. In
that case, as in the case at bar, extended lege tax, but is either a tax on property or a tax on business; and that, as either, it briefs were filed by able counsel, some of violates the constitutional provision as to
whom appear here, and the points involved uniformity. It is also said this section is were fully argued. An examination of the void, in that it violates the equal protection briefs filed in the Barrett Case shows that
counsel for various foreign insurance comand due process clauses of the Fourteenth Amendment to the Constitution of the Unit- panies, appearing either as representing pared States. The further contention is made ties or as amici curiæ, there attacked this that, even though the statute be held valid, act on the ground that it is unconstitutional, the tax on net receipts must be assessed as
as violating section 2 of article 4 and secpersonal property, and scaled and debased tions 9 and 10' of article 9 of the state Con
stitution and the Fourteenth Amendment as such.
of the United States Constitution. It was Section 30 is as follows:
there also contended that, if the statute was “Every agent of any insurance company, in- valid, the net receipts must be taxed as per. corporated by the authority of any other state sonal property, to be scaled and debased as or government, shall return to the proper offi- in other cases of personal property taxed. It cer of the county, town or municipality in which was argued in the Barrett Case, as here, the agency is established, in the month of May, that contemporaneous construction on the annually, the amount of the net receipts of such agency for the preceding year, which shall part of the executive department of the state be entered on the tax lists of the county, town has continued for a sufficient length of time and municipality, and subject to the same rate to be of controlling force. of taxation, for all purposes-state, county, People v. Kent, supra, was an action in town and municipal-that other personal prop- mandamus against the respondent, as agent erty is subject to at the place where located; for various foreign fire insurance companies, said tax to be in lieu of all town and municipal to require him to make return of net relicenses; and all laws and parts of laws inconceipts to the board of review in accordance sistent herewith are hereby repealed: Provided, that the provisions of this section shall not be with section 30 of the Fire, Marine, and Inconstrued to prohibit cities having an organized land Navigation Insurance Act. In awardfire department from levying a tax or a license ing the writ of mandamus it was held as a fee, not exceeding two per cent. in accordance basis of that decision, and not as obiter dic
(148 N.E.) tum, as is argued, that the tax levied on the ders of this state. Alpena Cement Co. v. net receipts of such foreign insurance com- Jenkins & Reynolds Co., 244 Ill. 354, 91 N. E. panies was not a property tax, but was as- 480; Raymond v. Hartford Fire Ins, Co., 196 sessed on the business of insurance done; Ill. 329, 63 N. E. 745; Hartford Fire Ins. Co., that the regulations relating to personal v. City of Peoria, 156 Ill. 420, 40 N. E. 967; property tax had no application to the tax Walker v. City of Springfield, 94 Ill. 364; there provided. It was also held that there Western Union Telegraph Co. v. Lieb, 76 Ill. existed in the Legislature power and au- 172; Ducat v. City of Chicago, 48 Ill. 172, thority to adopt the methods prescribed by 95 Am. Dec. 529; People v. Thurber, 13 Ill. which the amount of the tax is to be deter- 554; Western Union Telegraph Co. v. Kansas mined. In People v. Barrett, supra, it was ex rel. Coleman, 216 U. S. 1, 30 S. Ct. 190, 54 again held that the tax on net receipts of for- L. Ed. 355; Paul v. Virginia, 8 Wall. 168, 19 eign insurance companies is not a personal L. Ed. 357. property tax, and not entitled to be scaled or  It is not contended that the Legislareduced. It was also there held that section ture of this state may not levy such privi30 is not unconstitutional, as violating sec- lege tax as it chooses without regard to the tion 10 of article 9 of the Illinois Constitu- constitutional provisions compelling uniformtion, requiring uniformity of taxation, and ity and equal protection of the laws, but it is that since the tax was not a property tax, said that the tax here involved, having been but a tax on the business of insurance done, held to be a tax on business, cannot be conit does not violate section 1 of article 9 of sidered a privilege tax. This is a misconthe Constitution.
ception of the term “tax on business.” HavAppellant contends that, if the Barrett ing a right to prohibit a foreign corporation Case is right in holding that the tax in ques- from entering the state to do business, it foltion in that case is a tax on insurance busi- lows that the Legislature may exact such ness done in the state, then such tax is a compensation for that privilege as it sees property tax, and not an excise tax, and that, fit, and levy the same in any manner or by since this is so, the act, which requires for- any method it chooses. The tax provided eign fire insurance companies to pay this tax, by section 30 does not purport to be a propwhile foreign casualty companies and domes- erty tax. Net receipts, of course, are pertic fire insurance companies are not required sonal property. The right given to the Legto pay the same, is void, as against the uni- islature to provide for the levying of taxes formity clause of section 1 of article 9 of the on property requires that the property be state Constitution, and in violation of the valued by an assessor or some person proequal protection clause of the Fourteenth vided by the law to fix the valuation thereof. Amendment to the Constitution of the Unit- The Revenue Act (Smith-Hurd Rev. St. C. ed States. It is said that, this court having 120), in compliance with this, mandate, proheld that this is a tax on business, either a vides that the assessor fix the value of such logical or legal possibility of its being con- personal property as of the 1st day of April. sidered a privilege tax is precluded; that a It will be noted that, under section 30 comprivilege tax was by the act of 1919, here- plained of, the net receipts of foreign insurinbefore referred to, levied as the consid- ance companies, such as appellant, are not to eration for the privilege of coming into the be valued by an assessor or other authority, state to do business, while a tax on business nor is the assessment to be based on properis that levied after the insurance company ty having a situs in this state on April 1. has been allowed to do business in the state, In fact, it is not required that the net reand is therefore levied on the property of a ceipts acquire or retain a situs in this state person within the state, and, whether it be at any time. It is a tax on the amount of considered a property tax or a business tax, business done, and for the privilege of conit is under either view subject to the consti- tinuing in such business and the net receipts tutional requirement of uniformity, and is of such business are used as the basis of denot in any view a privilege tax, such as is termining that tax. Such net receipts and authorized by the latter clause of section 1 the method prescribed constitute the thing of article 9 of our Constitution, empowering and the means by which is to be determined the Legislature to tax “insurance, telegraph the amount which foreign fire, marine, and and express interests or business."
inland navigation insurance companies shall  The General Assembly has power to pay to the state, and to the various municiprescribe the terms and conditions upon palities included in the act, as compensation which foreign corporations, other than cor- for the right to do business in the state and porations engaged in interstate commerce in such municipalities. Section 30 provides and those constituting instrumentalities of that this tax shall be “in lieu of all town the United St government, shall be al- and municipal licenses,” except for the suplowed to do business in this state. The Leg- port of organized fire departments. No conislature has, if it desires to use it, power to stitutional prohibition exists against such prevent foreign corporations from entering a tax as a condition to the right to do busior transacting any business within the bor- ness. A tax on business, as provided in this
act, is not, as argued, to be distinguished / plied with the requirements of section 30 with
The fact that a tax is a privilege tax does shown by an act entitled "An act providing a
to have violated section 30 of the Fire, MaCounsel for appellant argue that the fact rine, etc., Act herein referred to. By section that the act requires that these net receipts | 2 of that act any company so violating secshall be entered on the same tax lists and be tion 30 shall have its authority to transact subject to the same rate of taxation, for all business in the state revoked by the auditor purposes, as other personal property is en- of public accounts for a period of not less tered and is subject, shows that it is a per- than 90 days, and when so revoked it shall sonal property tax; that its payment is not not be reissued until such insurance company made a condition to the right to do business has shown "complete compliance with the in the state; and that it therefore cannot laws of this state governing fire, marine be considered a privilege tax. This is a and inland navigation insurance companies,” misconception of the provisions of the stat- and has shown that all taxes and penalties ute pertaining to this tax.
and expenses due thereunder have been paid.  Section 22 of the act relating to fire, It seems clear, therefore, that this tax is marine, and inland navigation insurance, levied as compensation for the privilege of aside from specifying certain requirements continuing their business in the state, imposed upon foreign insurance companies While the act of 1919, entitled "An act in seeking to do business in this state, and spec- relation to the taxation of nonresident corifying what shall be necessary to secure the porations, companies and associations for right of entry, further provides:
the privilege of doing an insurance business
in this state,” approved June 28, 1919 (Laws
likewise a tax for the privilege of doing
business. The act of 1919 requires that the The provisions of section 30 requiring the tax there levied be paid to the state. Secreturn of net receipts of this tax are a part tion 30 requires that the tax be apportioned of the “requisitions of this act.” It is evi- among the state and the different municident, therefore, from the language of section palities of the situs of the agency. A valid 22 quoteil, that before appellant may con reason is seen for this distribution of the tinlle in business in this state its agent shall tax. The foreign fire insurance company procure annually from the insurance super- takes its net proceeds largely from the vicinintendent of the state or his successor in ity of its agencies, and it is but just that it law, a certificate showing that it has com- | return to the municipality in which its